on such marsh lands, although below it a well defined water course appears. Casody, C. J., and Marshall, J., dissenting. Case v. Hoffman, Wis. (72 N. W. Rep. 390).

N. M.

Sec. 965. What are navigable waters-Public rights. The navigability of a river does not depend upon its susceptibility of being made so by high engineering skill and expenditure of vast sums of money, but upon its natural present conditions. To render a river navigable it need not be perennially so, but the season of navigation must occur regularly and be of sufficient duration and character to subserve a useful public purpose for commercial intercourse. United States v. Rio Grande Dam Irr. Co., (51 Pac. Rep. 674). Citing, The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 431; Rowe v. Bridge Corp., 21' Pick. 344; Haines v. Hall, 17 Or. 165 (20 Pac. Rep. 841; 3 L. R. A. 609). A stream which is not capable of floating logs in its ordinary state of water, but only when swollen by heavy rains and then only for very short periods, is held not to be navigable as a floatable stream. Allison v. Davidson, Tenn. (39 S. W. Rep. 905). See opinion for exhaustive review of authorties on this subject. A private ditch or canal connecting with a navigable stream, which was never used by the public, was not a stream and had no current, and which has been partially abandoned and filled up, does not constitute a public navigable water way so as not to be subject to condemnation for public use. Ligare v. Chicago, M. & N. R. Co., 166 Ill. 249 (46 N. E. Rep. 803). The public has a right of navigation and fishing in the navigable waters of the open bays of Lake Erie in Ohio. Bodi v. Winous Point Shooting Club, 57 O. St. 226 (48 N. E. Rep. 944).

In

Sec. 966. Subterranean or percolating waters. the recent case of Case v. Hoffman, Wis. (72 N. W. Rep. 390), the supreme court of Wisconsin say: "Subsurface currents or percolations which do not follow definite and known channels are not governed by the rules respecting the use and diversion of water courses, but, although of considerable volume, are treated in law the same as surface water. The water is deemed to be part of the soil itself, and, to the

same extent, subject to whatever disposition the owner of the land may choose to make; and, if some damages happen to an adjacent proprietor, by the interception of some subterranean current, that is damnum absque injuria. This is established by the great weight of authority. Goodale v. Tuttle, 29 N. Y. 459–466; Village of Delhi v. Youmans, 45 N. Y. 362; Phelps v. Nowlen, 72 N. Y. 39 (28 Am. Rep. 93); Barkley v. Wilcox, 86 N. Y. 140-147 (40 Am. Rep. 519); Bloodgood v. Ayers, 108 N. Y. 400 (15 N. E. Rep. 433; 2 Am. St. Rep. 443); Greenleaf v. Francis, 18 Pick. 117; Davis v. Spaulding, 157 Mass. 431 (32 N. E. Rep. 650; 19 L. R. A. 102); Bassett v. Manufacturing Co., 43 N. H. 569 (82 Am. Dec. 179); Swett v. Cutts, 50 N. H. 439 (9 Am. Rep. 276); Chatfield v. Wilson, 28 Vt. 49; Roath v. Driscoll, 20 Conn. 533 (52 Am. Dec. 352); Frazier v. Brown, 12 O. St. 294; Hanson v. McCue, 42 Cal. 303 (10 Am. Rep. 299); Railroad Co. v. Dufour, 95 Cal. 615 (30 Pac. Rep. 783; 19 L. R. A. 92); Gould v. Eaton, 111 Cal. 639 (44 Pac. Rep. 319; 52 Am. St. Rep. 201); Wheatley v. Baugh, 25 Pa. St. 528 (64 Am. Dec. 721); Haldeman v. Bruckhart, 45 Pa. St. 514 (84 Am. Dec. 511); Coleman v. Chadwick, 80 Pa. St. 81 (21 Am. Rep. 93); Mosier v. Caldwell, 7 Nev. 363; Taylor v. Welch, 6 Or. 198; Chesley v. King, 74 Me. 164 (43 Am. Rep. 569); Ocean Grove Camp Meeting Ass'n v. Commissioners of Asbury Park 40 N. J. Eq. 447 (B Atl. Rep. 168); Acton v Blundell, 12 Mees. & W. 324; Rawstron v. Taylor, 11 Exch. 369; Chasemore v. Richards, 7 H. L. Cas. 349." Particular evidence examined and held insufficient to show that the water of a spring disappearing within the limits of the owner's land, thereafter joins with another channel to form the bed of a particular stream. Farwell v. Sturgis Water Co., 10 S. Dak. 421 (73 N. W. Rep. 916).

Sec. 967. Mill dams and water rights. A covenant to contribute toward the expense of keeping a dam in repair, does not bind the covenantor to contribute toward building a new dam in case the old one should perish or be destroyed. Trudeau v. Field, 69 Vt. 446 (38 Atl. Rep. 162). The right of flowage and to build a dam, granted by deed, is not lost by a change in the channel of the stream acquiesced in by all

parties, nor by nonuser for nineteen years. Clinton Gas Light Co. v. Fuller, 170 Mass. 82 (48 N. E. Rep. 1024). The owner of a mill dam, the operations of whose mill has not been impeded, cannot recover damages from an upper owner on account of his rightful use of the water, reducing the amount so as to damage the dam by exposing it to the sun. Louisville & N. R. Co. v. Beauchamp, Ky. (40 S. W. Rep. 679). Particular case in which one was held to be estopped to recover damages resulting from the flooding of his lands caused by the opening of the gates of a dam. Alexander v. Winters, 23 Nev. 475 (49 Pac. Rep. 116). One entitled to receive waters naturally flowing in a stream, to supply a mill dam, may enjoin a municipality engaged in draining a highway, from withdrawing such waters from his dam, although the loss resulting to him wonld be small in comparison with the benefits accruing to the public and owners of low lands. Stock v. Jefferson Tp., 114 Mich. 357 (72 N. W. Rep, 132; 38 L. R. A. 355). N. H. Gen. Laws, ch. 141, §§ 15, 16, construed and applied-assessment of damages for flowing lands by dams erected by mill owners. Chapman v. New Market Mfg. Co., 67 N. H. 180 (38 Atl. Rep. 16). Where a grant of the right to draw water from a dam stipulates that it is not to be used "to the injury of privileges granted heretofore" the holders of such privileges are under no obligation to contribute to the rebuilding of the dam in case of its destruction. Trudeau v. Field, 69 Vt. 446 (38 Atl. Rep. 162). The grantee of a right to take from a bulkhead and flume "the quantity of water which shall be discharged therefrom through an aperture of 200 square inches at the gate under fifteen feet head" is entitled to a constant power equivalent to a stream of water discharged through such an aperture with such a head, and the aperture should be enlarged as the head falls, and diminished as it rises. Cummings v. Blanchard, 67 N. H. 268 (36 Atl. Rep. 556). Under a grant of lands and water privileges, the easement being of so much water as will operate a mill which is upon the lands conveyed, the grantee is entitled to the use of the water for any purpose he sees fit, provided the quantity used is not increased, and the change in the use does not prejudice the rights of others. Where a conveyance of a "mill seat" contains a grant of a right to flow other lands of the

grantor for the purpose of a mill pond, such grant carries with it, as an incident, the right to enter and clean the pond. Fountain v. City of Perth Amboy, 60 N. J. L. 410 (38 Atl. Rep. 676). A lessee of a water power has no other or greater rights in respect to the accumulation of water, than his lessor possessed. Smith v. Youmans, 96 Wis. 103 (70 N. W. Rep. 1115; 65 Am. St. Rep. 30; 37 L. R. A. 285). For construction of a particular deed granting water rights in a water power canal and determination of questions of pleading and practice in an action for their enforcement, see Powers v. Hibbard, 114 Mich. 533 (72 N. W. Rep. 339). For particular case construing conveyances of water rights and discussing the rights, liabilities, and powers of tenants in common of a water power in reference to conveyances, possession, creation of easements, and partition, see Forest Milling Co. v. Cedar Falls Mill Co., 103 Ia. 619 (72 N. W. Rep. 1076).

WILLS.

EPITOME OF CASES.

Sec. 968. Agreement to make a will-What constitutes a will-Title by. An agreement to make a disposition of property by will, may be enforced against the promisor's devisee. An executor who has turned over all the estate to a sole devisee is not a necessary party to an action to enforce such contract, nor are the heirs of the testator. Fogle v. Protestant Epis. Church, 48 S. C. 86 (26 S. E. Rep. 99). A lease, to begin upon its execution, made by a wife to her husband during his natural life, rent free, cannot be probated as a will of the lessor. In re Ogle's Estate, 97` Wis. 56 (72 N. W. Rep. 389). A joint will executed by two persons cannot be probated as such until after the death of both of them, but it may be probated as the will of one of the parties on his death, and subsequently probated as the will of the other after his death where there has been no intervening revocation. In re Davis' Will, 120 N. C. 9 (26 S. E. Rep. 636; 58 Am. St. Rep. 771; 38 L. R. A. 289). Title to land by devise can only be acquired when the will is duly executed,

proved and recorded according to the laws of the state in which the land is situated. Emmons v. Gordon, 140 Mo. 490 (41 S. W. Rep. 998; 62 Am. St. Rep. 734); Evansville Ice & Cold Storage Co. v. Winson, 148 Ind. 682 (48 N. E. Rep. 592). The last case holds that the same law governs in determining when a devise of real estate is revoked. devisee under a will takes subject to the superior equities and rights of the creditors of the testator. Pearson v. Gillenwaters, 99 Tenn. 446 (42 S. W. Rep. 9; 63 Am. St. Rep. 844); 99 Tenn. 462 (42 S. W. Rep. 199.)

A

Sec. 969. As to the validity of devises of real estate. A devise to a corporation which has not the power to take the property is void, and the law will vest the title in the heir. House of Mercy v. Davidson, 90 Tex. 529 (39 S. W. Rep. 924). A devise of all of testator's "up land" is not void on its face for uncertainty and parol evidence is admissible to show what lands the testator intended to devise. Vandiver V. Vandiver, 115 Ala. 328 (22 So. Rep. 154). Construing and applying W. Va. Code, ch. 77, § 18, it is held that if a will can be proved independently of the testimony of an attesting witness beneficially interested therein, a devise or bequest to such witness or her husband is not void. Davis v. Davis, 43 W.Va. 300 (27 S. E. Rep. 323). Where the only provisions in a will designating the beneficiary were: "4th. Whoever shall take care of me, and maintain, nurse, clothe, and furnish me with proper medical treatment at my request, during the time of my life yet when I shall need the same, shall have all of my property of every name, kind, and description left at my death. 5th. The person or persons who shall be selected by me to earn my estate, as provided in 4th clause, shall have a written statement signed by me to that effect, to entitle her, him, or them to my estate," it was held that the will was not invalid on account of the failure to designate the devisee, and that a letter written by the testatrix to one claiming the right to the property under the will, requesting her to come and take care of the testatrix during her last illness, was admissible to aid in identifying the beneficiary entitled to receive under the will. Dennis v. Holsapple, 148 Ind. 297 (47 N. E. Rep. 631; 62 Am. St. Rep. 526).